The Judiciary Reorganization Bill of 1937, frequently called the court-packing plan,[1] was a legislative initiative to add more justices to the Supreme Court proposed by U.S. PresidentFranklin Roosevelt shortly after his victory in the 1936 presidential election. Although the bill aimed generally to overhaul and modernize all of the federalcourt system, its most important provision would have granted the President power to appoint an additional Justice to the U.S. Supreme Court for every sitting member over the age of 70½, up to a maximum of six.

During Roosevelt's first term in office,[2] the Supreme Court had struck down several prominent New Deal measures intended to bolster economic recovery during the Great Depression, leading to charges from New Deal supporters that a narrow majority faction of the court was obstructionist and political. Since the U.S. Constitution does not limit the size of the Supreme Court, Roosevelt, having won an expanded electoral mandate in his reelection, sought to counter this entrenched opposition to his political agenda by expanding the number of justices to create a pro-New Deal majority on the bench.[3] Opponents viewed the legislation as an attempt to stack the court leading to the name "Court-packing Plan".[1]

The legislation was unveiled on February 5, 1937. Several weeks later the Supreme Court upheld a Washingtonminimum wage law in West Coast Hotel Co. v. Parrish[4] by a 5–4 ruling, after Associate JusticeOwen Roberts joined with the wing of the bench more sympathetic to the New Deal. Because Roberts had previously ruled against most New Deal legislation, his apparent about-face was widely interpreted by contemporaries as an effort to maintain the Court's judicial independence by alleviating the political pressure to create a court more friendly to the New Deal. His dramatic move came to be known as "the switch in time that saved nine". However, this interpretation of Roberts's action has been called into question as an anachronistic "winner's history"[5] since Roberts's decision predated the introduction of the 1937 bill.[6]

Ultimately, Roosevelt's proposed legislation failed when the U.S. Senate voted 70–20 to recommit the bill to the Senate Judiciary Committee following the sudden death of Senate Majority LeaderJoseph T. Robinson, whose efforts would have been essential to the bill's passage. In recommitting the bill, the Senate explicitly instructed the Judiciary Committee to strip the bill of its court-packing provisions. The entire episode garnered several negative consequences for Roosevelt that lasted through the rest of his administration, leading many scholars to conclude the President's victory was a pyrrhic one.[7]

A minor aspect of Roosevelt's New Deal agenda may have itself directly precipitated the showdown between the Roosevelt administration and the Supreme Court. Shortly after Roosevelt's inauguration, Congress passed the Economy Act, a provision of which cut many government salaries, including the pensions of retired Supreme Court justices. Associate JusticeOliver Wendell Holmes, Jr., who had retired in 1932, saw his pension halved from $20,000 to $10,000 per year. The serious cut to pensions appears to have dissuaded at least two older Justices, Willis Van Devanter and George Sutherland, from retirement.[9] Both would later find many aspects of the New Deal unconstitutional.

The flurry of new law in the wake of Roosevelt's first hundred days swamped the Justice Department with more responsibilities than it could manage.[10] Many Justice Department lawyers were ideologically opposed to the New Deal and failed to influence either the drafting or reviewing of much of the White House's New Deal legislation.[11] The ensuing struggle over ideological identity increased the ineffectiveness of the Justice Department. As Interior SecretaryHarold Ickes complained, Attorney GeneralHomer Cummings had "simply loaded it [the Justice Department] with political appointees" at a time when it would be responsible for litigating the flood of cases arising from New Deal legal challenges.[12]

This disarray at the Justice Department meant that the government's lawyers often failed to foster viable test cases and arguments for their defense, subsequently handicapping them before the courts.[11] As Chief JusticeCharles Evans Hughes would later note, it was because much of the New Deal legislation was so poorly drafted and defended that the court did not uphold it.[11]

Traditionally, the portrayal of Roosevelt's struggle with the Supreme Court has been painted along starkly ideological lines, with the liberal or progressive wing of the court pitted against a conservative or reactionary one. It is true that in many of their rulings the Supreme Court of the 1930s was deeply divided: four justices on each side, with Justice Roberts as the typical swing vote. However, the ideological divide between a so-called progressive and reactionary wing is misleading insofar as these terms suggest political and not jurisprudential differences. More recent scholarship has focused on the larger debate in U.S. jurisprudence regarding the role of the judiciary, the meaning of the Constitution, and the respective rights and prerogatives of the different branches of government in shaping the judicial outlook of the Court.[14]

The clash over the constitutionality of the New Deal initiatives was thus tied to divergent legal philosophies gradually coming into competition with each other: legal formalism and legal realism.[15] During the period ca. 1900 – ca. 1920, the formalist and realist camps clashed over the nature and legitimacy of judicial authority in common law, given the lack of a central, governing authority in those legal fields other than the precedent established by case law—i.e., the aggregate of earlier judicial decisions.[15]

This debate spilled over into the realm of constitutional law,[15] where realist legal scholars and judges argued that the constitution should be interpreted flexibly and judges should not use the Constitution to impede legislative experimentation. One of the most famous proponents of this concept, known as Living Constitution, was U.S. Supreme Court justice Oliver Wendell Holmes, Jr., who said in Missouri v. Holland[16] that the "case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago".[17] The conflict between formalists and realists implicated a changing but still-persistent view of constitutional jurisprudence which sees the U.S. Constitution as a static, universal, and general document which was not designed to change over time. Under this judicial philosophy, case resolution required a simple restatement of the applicable principles which were then extended to a case's facts in order to resolve the controversy.[18] This earlier judicial attitude came into direct conflict with the legislative reach of much of Roosevelt's New Deal legislation. Examples of these judicial principles include:

the early-American fear of centralized authority which necessitated an unequivocal distinction between national powers and reserved state powers;

the clear delineation between public and private spheres of commercial activity susceptible to legislative regulation; and

the corresponding separation of public and private contractual interactions based upon "free labor" ideology and Lockeanproperty rights.[19]

At the same time, developing modernist ideas regarding politics and the role of government placed the role of the judiciary into flux. The intellectual trajectory of this emerging view led away from what has been called "guardian review"—in which judges defended the line between appropriate legislative advances and encroachments into the private sphere of life—toward a stance of "bifurcated review". This latter view sorted laws into categories that demanded deference toward other branches of government in the economic sphere, but aggressively heightened scrutiny with respect to fundamental civil and political liberties.[20] The slow transformation away from the "guardian review" role of the judiciary brought about the ideological—and, to a degree, generational—rift in the 1930s judiciary. With his Judiciary Bill, Roosevelt sought to accelerate this judicial evolution by in effect neutralizing an older generation of judges that remained attached to an earlier mode of American jurisprudence.[19][21]

[T]his court from the early days affirmed that the power to promote the general welfare is inherent in government.[26]

Nebbia also holds a particular significance: it is viewed to be the one case in which the Court abandoned its jurisprudential distinction between the "public" and "private" spheres of economic activity.[21] This one principle was a central nexus to the court's approach to its state police power analysis.[21] The effect of this decision then radiated outward, affecting other doctrinal methods of analysis in wage regulation, labor, and Congress's commerce power.[19][21]

The first major test of New Deal legislation came in Panama Refining Co. v. Ryan,[27] announced January 7, 1935. Contested in this case was the National Industrial Recovery Act, Section 9(c), in which Congress had delegated to the President authority "to prohibit the transportation in interstate and foreign commerce of petroleum ... produced or withdrawn from storage in excess of the amount permitted ... by any State law".[28] The NIRA passed in June 1933, and Roosevelt moved quickly to file executive orders to regulate the oil industry. Two small, independent oil producers, Panama Refining Co. and Amazon Petroleum Co. filed suit for an injunction to halt enforcement, arguing that the law exceeded Congress's interstate commerce power and improperly delegated authority to the President.

The Supreme Court agreed with the oil companies, holding that Congress had inappropriately delegated its regulatory power without both a clear statement of policy and an establishment of a specific set of standards by which the President was to act. Although a loss for the Roosevelt administration and New Deal supporters, it was mitigated by the narrowness of the court's opinion, which did not deny Congress's authority to regulate interstate oil commerce.[29]Chief JusticeHughes had indicated a ready fix for Congress in simply adding procedural safeguards.[30]

Economic regulation again appeared before the Supreme Court in the Gold Clause Cases.[31] Within the first week of holding office, Roosevelt closed the nation's banks, fearing gold hording and international speculation posed a danger to the national monetary system, basing his actions on the Trading with the Enemy Act of 1917.[32] Congress quickly ratified Roosevelt's action with the Emergency Banking Act. The President soon afterward issued Executive Order 6102, confiscating all gold coins, bullion, and certificates, requiring they be surrendered to the government by May 1, 1933 in exchange for currency. Congress also passed a joint resolution cancelling all gold clauses in public and private contracts, stating such clauses interfered with the Congress's power to regulate U.S. currency.

While the Roosevelt administration waited for the court to return its judgment, contingency plans were made for an unfavorable ruling.[33] Ideas floated about the White House to withdraw the right to sue the government to enforce gold clauses.[33]Attorney GeneralCummings opined the court should be immediately packed to ensure a favorable ruling.[33] Roosevelt himself ordered the Treasury to manipulate the market as to make it appear in turmoil, though Treasury SecretaryHenry Morgenthau refused.[33] Roosevelt also drew up executive orders to close all stock exchanges and prepared a radio address to the public.[33]

All three cases were announced on February 18, 1935, and all in favor of the government's position by a narrow 5–4 majority.[33] Chief Justice Hughes wrote the opinion for each case, finding the government's power to regulate money plenary. As such, the abrogation of contractual gold clauses, both public and private, were within the reach of congressional authority when such clauses presented a threat to Congress's control of the monetary system.[33] Of note was Hughes's opinion in the Perry case: in a judicial tongue-lashing not seen since Marbury v. Madison,[34] Hughes chided Congress for its immoral—though legal—act.[29] However, Hughes ultimately found the plaintiff had no cause of action, and thus no standing to sue the government.[35]

While not itself a part of the New Deal, the Roosevelt administration kept a close eye on the challenge to the 1934 Railroad Retirement Act, Railroad Retirement Board v. Alton Railroad Co.;[36] its resemblance to the Social Security Act meant the test of the railroad pension would serve as a bellwether to the Court's potential opinion of Roosevelt's pet retirement program.[37] The idea behind the railroad pension was to encourage older railworkers to retire, creating jobs for younger railroaders desperately in need of work; ostensibly, Congress justified the pension on grounds that its operation would increase safety on the railways.[37]

On May 6, 1935, Justice Roberts's 5–4 opinion for the Court scoffed at the government's position, dismissing the purported effect on railway safety as "without support in reason or common sense".[37] Further, Roberts took issue with a provision of the act which awarded pension computation credit to former railworkers, regardless of when they last worked in the industry.[37] Roberts characterized that section "a naked appropriation of private property"—taking the belongings "of one and bestowing it upon another"—and violative of the Due Process Clause of the Fifth Amendment.[37]

Still reeling from the defeat of the railroad pension case, the Roosevelt administration suffered its most severe setback just three weeks after the Alton case, on May 27, 1935: "Black Monday".[39]Chief JusticeHughes arranged for the decisions announced from the bench that day to be read in order of increasing importance.[39] The second case announced was the first of three unanimous holdings of the court, and all three defeats for the Roosevelt administration.[39]

Humphrey, a Republican appointed to a six-year term on the Commission in 1931, was thought at odds with the New Deal. Upon writing Humphrey in August 1933 to request his resignation, Roosevelt blundered, unwittingly admitting his reason for attempting to oust Humphrey. Roosevelt's letter stated, "I did not feel that your mind and my mind go along together."[42] Once Roosevelt felt he could not persuade Humphrey to resign, he dispatched an October 7 letter stating: "Effective as of this date you are hereby removed from the office of Commissioner of the Federal Trade Commission."[43]

Humphrey filed suit to return to his appointed office and collect backpay. The basis for his suit was the 1914 Federal Trade Commission Act, which specified that the President was only authorized to remove a FTC commissioner "for inefficiency, neglect of duty, or malfeasance in office".[44] Humphrey died on February 14, 1934 and his suit was carried on by his wife—as executor of his estate—for backpay up to the date of his death, with interest.

Next announced was Louisville Joint Stock Land Bank v. Radford.[45] The 1934 Frazier-Lemke Emergency Farm Mortgage Act was designed to give aid to debt-ridden farmers, allowing them to reacquire farms they had lost from foreclosure, or to petition the Bankruptcy Court within their district to suspend foreclosure proceedings.[46] The legislation's ultimate goal was to help those farmers scale down their mortgages.[46]

The opinion of the court, read by Justice Louis Brandeis, struck down the act on Fifth AmendmentTakings Clause grounds. The court found the act stripped the creditor of property which was held before the passage of the act, without any form of compensation, and bestowed the property upon the debtor.[41] Further, the act allowed the debtor to remain on the mortgaged property for up to five years after declaring bankruptcy, giving the creditor no opportunity to immediately foreclose.[41] While the states could not impair contract obligations, the federal government could—but it could not take property in such a manner without compensating the creditor.[41]

Under Section 3 of the NIRA, the President had promulgated the Live Poultry Code to regulate the New York poultry market. The Schechter brothers had been charged with criminal violations of the code and were convicted, whereupon they appealed on grounds that the NIRA was an unconstitutional delegation of legislative power to the executive, the NIRA sought to regulate business which was not engaged in interstate commerce, and that certain sections violated the Fifth AmendmentDue Process Clause.

Chief Justice Hughes delivered the opinion of the unanimous court, holding that Congress had delegated too much lawmaking authority to the President without any clear guidelines or standards.[48] Section 3 granted either trade associations or the President authority to draft "codes of fair competition", which amounted to a capitulation of congressional legislative authority.[48] The arrangement presented the danger that private entities, and not government officials, could engage in creating codes of law enforceable upon the public.[48] Justice Benjamin Cardozo, who had been the lone dissent in the similar Panama case, agreed with the majority. In his concurring opinion, Cardozo described Section 3 as "delegation run riot".[48]

Hughes also renewed an old method of jurispudence concerning the "current of commerce" theory of the Commerce Clause as expounded by Oliver Wendell Holmes, Jr. in Swift v. United States.[49][50] Hughes determined the poultry at issue in the case, though purchased for slaughter interstate, were not intended for any further interstate transactions after Schecter slaughtered them. Thus, the poultry were outside of Congress's authoritative reach unless Schecter's business had a direct and logical connection to interestate commerce, per the Shreveport Rate Case.[51] Hughes used a direct/indirect effect analysis to determine the Schechters' business was not within the reach of congressional regulation.[50]

Upon learning of the unanimity of the three court decisions, Roosevelt became distressed and irritable, regarding the opinions as personal attacks.[52] The Supreme Court's decision in Humphrey's Ex. particularly stunned the administration.[53] Only nine years earlier, in Myers v. United States,[54] the Taft Court had held the President's power to remove executive officials was plenary. Roosevelt and his entourage viewed Sutherland's particularly vicious criticism as an attempt to publicly shame the President and paint him as having purposefully violated the Constitution.[53]

After the decisions came down, Roosevelt remarked at a May 31 press conference that the Schechter decision had "relegated [the nation] to a horse and buggy definition of interstate commerce".[55] The comment lit a fire under the media and indignated the public.[56] Scorned for the perceived attack on the court, Roosevelt assumed a diplomatic silence toward the court and waited for a better opportunity to press his cause with the public.[56]

The AAA received its trial in the case of United States v. Butler,[58] announced January 6, 1936. The AAA had created an agricultural regulatory program with a supporting processing tax; the revenue raised was then specifically used to pay farmers to reduce their acreage and production, which would in turn reduce surplus harvest yields and increase prices. Officials of the Hoosac Mills Corp. argued that the AAA was as unconstitutional as the National Industrial Recovery Act, attempting to regulate activity not in interstate commerce. Specifically attacked was the use of Congress's Taxing and Spending power undergirding the program.[57]

Associate JusticeRoberts again delivered the opinion of a divided court, agreeing with those challenging the tax. Regarding agriculture as an essentially local activity, the court invalidated the AAA as a violation of the powers reserved to the states under the Tenth Amendment.[57] The court also used the occasion to settle a dispute over the General Welfare Clause stemming back to the administration of George Washington, holding Congress possessed a power to tax and spend for the general welfare.[57]

Following the undoing of the National Recovery Administration by the Schechter decision, Congress attempted to salvage the coal industry code promulgated under the National Industrial Recovery Act in the Bituminous Coal Conservation Act of 1935.[59] The act, closely following the criteria of the Schechter ruling, declared a public interest in coal production and found it so integrated into interstate commerce as to warrant federal regulation.[59] The code subjected the coal industry to labor, price, and practice regulations, levying a 15 percent tax on all producers with a provision to refund a significant portion of the tax for those adhering to the legislation's dictates.[60] James Carter, shareholder and president of the Carter Coal Co., filed suit against the board of directors when they voted to pay the tax.[61]

The final provocation for New Deal supporters came in the overturning of a New Yorkminimum wage statute on June 1, 1936. Morehead v. New York ex rel. Tipaldo[65] was an important attempt among New Deal supporters to overturn a prior Supreme Court decision prohibiting wage price controls, Adkins v. Children's Hospital.[66]Felix Frankfurter had worked to carefully craft the law for the New York legislature so it would stand up to challenges based upon the Adkins opinion.

The case resulted from the indictment of a Brooklyn laundry owner John Tipaldo, who had not paid his female employees the $12.40 per week, and kept false books indicating he had.[67] Tipaldo contested the law under which he was charged as unconstitutional and filed for habeas corpus relief. The New York Court of Appeals found itself in agreement with Tipaldo, being unable to find any substantial difference between the New York law and the Washington, D.C. law overturned in Adkins.[67]

How the court split its vote in this case is supportive of challenges to the "switch in time" narrative. Justices Brandeis, Stone, and Cardozo each thought Adkins was incorrectly decided and desired to overturn; Chief JusticeHughes believed the New York law differed from the law in Adkins and wanted to uphold the New York statute; Justices Van Devanter, McReynolds, Sutherland, and Butler found no distinctions and voted to uphold the habeas corpus petition; the outcome of the Tipaldo case thus hung in the balance of Justices Roberts's vote.[67] Roberts could find no distinction in the two minimum wage laws, but appears to have been inclined to support an overturning of Adkins anyway.[68] However, there was a problem: the appellant had not taken issue with the Adkins precedent and failed to challenge it.[69][70] Having no "case or controversy" legs upon which to stand, Roberts deferred to the Adkins precedent.[70]

Roosevelt broke his year-long silence on Supreme Court issues to comment on the Tipaldo opinion:

It seems to be very clear, as a result of this decision and former decisions, using this question of minimum wage as an example, that the "no man's land" where no government—state or federal—can function is being more clearly defined. A state cannot do it and the federal government cannot do it.[71]

The coming conflict with the court was foreshadowed by a campaign statement Roosevelt had made in 1932:

After March 4, 1929, the Republican party was in complete control of all branches of the government—the legislature, with the Senate and Congress; and the executive departments; and I may add, for full measure, to make it complete, the United States Supreme Court as well.[72]

An April 1933 letter to the president offered the idea of packing the Court: "If the Supreme Court's membership could be increased to twelve, without too much trouble, perhaps the Constitution would be found to be quite elastic."[72] The next month, soon-to-be Republican National Chairman Henry Plather Fletcher expressed his concern: "[A]n administration as fully in control as this one can pack it [the Supreme Court] as easily as an English government can pack the House of Lords."[72]

As early as the autumn 1933, Roosevelt had begun anticipation of reforming a federal judiciary composed of a stark majority of Republican appointees at all levels.[73] Roosevelt tasked Attorney GeneralHomer Cummings with a year-long "legislative project of great importance".[74]Justice Department lawyers then commenced research on the "secret project", with Cummings devoting what time he could.[74] The focus of the research was directed at restricting or removing the Supreme Court's power of judicial review.[74] However, an autumn 1935 Gallup Poll had returned a majority disapproval of attempts to limit the Supreme Court's power to declare acts unconstitutional.[75] For the time being, Roosevelt stepped back to watch and wait.[76]

Other alternatives were also sought: Roosevelt inquired about the rate at which the Supreme Court denied certiorari, hoping to attack the Court for the small number of cases it heard annually. He also asked about the case of Ex parte McCardle, which limited the appellate jurisdiction of the Supreme Court, wondering if Congress could strip the Court's power to adjudicate constitutional questions.[74] The span of possible options even included constitutional amendments; however, Roosevelt soured to this idea, citing the requirement of three-fourths of state legislatures needed to ratify, and that an opposition wealthy enough could too easily defeat an amendment.[77] Further, Roosevelt deemed the amendment process in itself too slow when time was a scarce commodity.[78]

Attorney General Cummings received novel advice from Princeton University professor Edward S. Corwin in a December 16, 1936 letter. Corwin had relayed an idea from Harvard University professor Arthur Holcombe, suggesting that Cummings tie the size of the Supreme Court's bench to the age of the justices since the popular view of the Court was critical of their age.[79] However, another related idea fortuitously presented itself to Cummings as he and his assistant Carl McFarland were finishing their collaborative history of the Justice Department, Federal Justice. An opinion written by Associate JusticeMcReynolds—one of Cumming's predecessors as Attorney General, under Woodrow Wilson—had made a proposal in 1914 which was highly relevant to Roosevelt's current Supreme Court troubles:

Judges of the United States Courts, at the age of 70, after having served 10 years, may retire upon full pay. In the past, many judges have availed themselves of this privilege. Some, however, have remained upon the bench long beyond the time that they are able to adequately discharge their duties, and in consequence the administration of justice has suffered.

I suggest an act providing that when any judge of a federal court below the Supreme Court fails to avail himself of the privilege of retiring now granted by law, that the President be required, with the advice and consent of the Senate, to appoint another judge, who would preside over the affairs of the court and have precedence over the older one. This will insure at all times the presence of a judge sufficiently active to discharge promptly and adequately the duties of the court.[80]

The content of McReynolds's proposal and the bill later submitted by Roosevelt were so similar to each other that it is thought the most probable source of the idea.[81] Roosevelt and Cummings also relished the opportunity to hoist McReynolds by his own petard.[82] McReynolds, having been born in 1862,[83] had been in his early fifties when he wrote his 1914 proposal, but was well over seventy when Roosevelt's plan was set forth.

allowing the President to appoint new judges for each federal judge with 10 years service who did not retire or resign within six months after reaching the age of 70 years;

limitations upon the number of judges the President could appoint: no more than six Supreme Court justices, and no more than two on any lower federal court, with a maximum allocation between the two of 50 new judges;

that lower-level judges be able to float, roving to district courts with exceptionally busy or backlogged dockets; and

lower courts be administered by the Supreme Court through newly created "proctors".[84]

The latter provisions were co-opted from the lobbying of Judge William Denman of the Ninth Circuit Court, who believed the lower courts were in a state of disarray and felt the unnecessary delays in the lower courts affected the appropriate administration of justice.[85]Roosevelt and Cummings authored accompanying messages to send to Congress along with the proposed legislation, hoping to couch the debate in terms of the need for judicial efficiency and relieving the backlogged workload of elderly judges.[86]

The choice of date as to launch the plan appears to have been influenced by other sensitive events taking place: Roosevelt desired to present the legislation before the Supreme Court began hearing oral arguments on the Wagner Act cases, scheduled to commence February 8, 1937; however, Roosevelt also did not want to present the legislation before the annual White House dinner for the Supreme Court, scheduled for February 2.[87] With a Senate recess of February 3–5, and a weekend of February 6–7, Roosevelt's had to settle for February 5.[87] Also present were other pragmatic concerns, such as presenting the bill early enough in the Congressional session to make sure it passed before the summer recess, and if successful, to leave time for nominations to any newly-created bench seats.[87]

After the proposed legislation was announced, much public reaction was hostile since the Supreme Court was generally conflated with the U.S. Constitution itself.[88] The assault against the Court brushed up against this wider public reverence.[89]
Letters flooded into the offices of representatives in both houses of Congress, with opinion tallying against the bill nine-to-one; the reaction in the press was similar. Bar associations nationwide followed suit as well, lining up in opposition to the bill.[90] Roosevelt's own Vice PresidentJohn Nance Garner expressed disapproval of the bill, holding his nose and giving a thumbs down from the rear of the Senate chamber.[91]William Allen White, a renowned editorialist, concluded in a column he wrote on February 6: "Because he [Roosevelt] is adroit and not forthright, he arouses irritating suspicions, probably needlessly, about his ultimate intentions as the leader of his party and the head of government."[92]

Reaction against the bill also spawned the National Committee to Uphold Constitutional Government, which was launched in February 1937 by three leading opponents of the New Deal. Frank E. Gannett, a newspaper magnate, provided both money and publicity. Two other founders, Amos Pinchot, a prominent lawyer from New York, and Edward Rumely had both been Roosevelt supporters who had soured on the President's agenda. Rumely directed an effective and intensive mailing campaign to drum up public opposition to the measure. Among the original members of the Committee were James Truslow Adams, Charles Coburn, John Haynes Holmes, Dorothy Thompson, Samuel S. McClure, Mary Dimmick Harrison, and Frank A. Vanderlip. The Committee's membership reflected the bipartisan opposition to the bill, especially among better educated and wealthier constituencies.[93] As Gannett explained, "we were careful not to include anyone who had been prominent in party politics, particularly in the Republican camp. We preferred to have the Committee made up of liberals and Democrats, so that we would not be charged with having partisan motives."[94]

The Committee made a determined stand against the Judiciary bill. It distributed more than 15 million letters condemning the plan. They targeted specific constituencies: farm organization, editors of agricultural publications, and individual farmers. They also distributed material to 161,000 lawyers, 121,000 doctors, 68,000 business leaders, and 137,000 clergymen. Pamphleteering, press releases and trenchantly worded radio editorials condemning the bill also formed part of the onslaught in the public arena.[95]

Still confident that he could win the public's backing despite opinion polls that indicated majority opposition, Roosevelt ignored much of the criticism.

Traditionally, legislation proposed by the administration first goes before the House of Representatives. However, Roosevelt failed to consult Congressional leaders before announcing the bill, which stopped cold any chance of passing the bill in the House.[96]House Judiciary Committee chairman Hatton W. Sumners refused to endorse the bill, actively chopping it up within his committee in order to block the bill's chief effect of Supreme Court expansion.[96] Finding such stiff opposition within the House, the administration arranged for the bill to be taken up in the Senate.[96]

Congressional Republicans deftly decided to remain silent on the matter, denying congressional Democrats the opportunity to use them as a unifying force.[97] Republicans then watched from the sidelines as the Democratic party split itself in the ensuing Senate fight.

With the vociferous public reaction, lone administration dissenter Robert H. Jackson encouraged Roosevelt to end his silence and address the public, and to end his pretense of "old-age and overworked justices".[98]

Roosevelt made his appeal to the public on March 9, 1937 in his ninth fireside chat.[99] In his address, Roosevelt decried the Supreme Court's majority for "reading into the Constitution words and implications which are not there, and which were never intended to be there".[100] He also acknowledged his real motivation for introducing the bill, stating the nation had reached a point where it "must take action to save the Constitution from the Court, and the Court from itself".[100]

The public, having seen through Roosevelt's subterfuge, refused to rally behind the President.[99]

reckless use of injunctions by the courts to preempt the operation of New Deal legislation;

aged and infirm judges who declined to retire;

crowded dockets at all levels of the federal court system; and

the need for a reform which would infuse "new blood" in the federal court system.[101]

Cummings based his testimony on hard numbers: in the 1935 term, the court had over 344,000 pages of material submitted for review.[101] Cummings testimony, however, was not well received and rang hollow.[101]

Administration advisor Robert H. Jackson testified next, attacking the Supreme Court's use of it power of judicial review and the Court's majority for its ideological views.[101] Further administration witnesses were grilled by the committee, so much so that after two weeks less than half the administration's witnesses had been called.[101] Exasperated by the stall tactics they were meeting on the committee, administration officials decided to call no further witnesses; it later proved to be a tactical blunder, allowing the opposition to indefinitely drag-on the committee hearings.[101] Further setbacks for the administration occurred in the failure of farm and labor interests to align with the administration.[102]

However, once the bill's opposition had gained the floor, it pressed its upper hand, continuing hearings as long as public sentiment against the bill remained in doubt.[103] Of note for the opposition was the testimony of Harvard University law professor Erwin Griswold.[104] Specifically attacked by Griswold's testimony was the claim made by the administration that Roosevelt's court expansion plan had precedent in U.S. history and law.[104] While it was true the size of the Supreme Court had been expanded since the founding in 1789, it had never been done for reasons similar to Roosevelt's.[104] The following table lists all the expansions of the court:

Created a new circuit court for OH, KY, & TN; Jefferson appoints the new associate justice. (2 Stat.420)

1837

9

Eighth & Ninth Circuits Act

Signed by President Andrew Jackson on his last full day in office; Jackson nominates two associate justices, both confirmed; one declines appointment. New President Martin Van Buren then appoints the second. (5 Stat.176)

1. Because federal justices serve during "good behavior", reductions in a federal court's size are accomplished only through either abolishing the court or attrition—i.e., a seat is abolished only when it becomes vacant. However, the Supreme Court cannot be abolished. As such, the actual size of the Supreme Court during a contraction may remain larger than the law provides until well after that law's enactment.

Another event damaging to the administration's case was a letter authored by Chief JusticeHughes to SenatorBurton Wheeler, which directly contradicted Roosevelt's claim of an overworked Supreme Court turning down over 85 percent of certiorari petitions in an attempt to keep up with their docket.[106] The truth of the matter, according to Hughes, was that rejections typically resulted from the defective nature of the petition, not due to the court's docket load.[106]

On March 29, 1937, the court handed down three decisions upholding New Deal legislation, two of them unanimous: West Coast Hotel Co. v. Parrish,[4]Wright v. Vinton Branch,[107] and Virginia Railway v. Federation.[108][109] The Wright case upheld a new Frazier-Lemke Act which had been redrafted to meet the Court's objections in the Radford case; similarly, Virginia Railway case upheld labor regulations for the railroad industry, and is particularly notable for its foreshadowing of how the Wagner Act cases would be decided as the National Labor Relations Board was modeled on the Railway Labor Act contested in the case.[109]

However, the Parrish case received the most attention, and later became an integral part of the "switch in time" narrative of conventional history.[110] In the case, the court divided along the same lines it had in the Tipaldo case, only this time around Roberts voted to overrule the Adkins precedent as the case brief specifically asked the court to reconsider its prior decision. Further, the decision worked to hinder Roosevelt's push for the court reform bill, further reducing what little public support there was for change in the Supreme Court.[109]

May 18, 1937, witnessed a double blow to the administration. First, Associate JusticeWillis Van Devanter announced his intent to retire on June 2, 1937, the end of the term.[111] This undercut one of Roosevelt's chief complaints against the court—he hadn't had an opportunity in the entirety of his first term[2] to make an appointment, let alone a nomination, to the high court.[111] It also presented Roosevelt with a personal dilemma: he had already long ago promised the first court vacancy to Senate Majority LeaderJoseph T. Robinson.[111] As Roosevelt had based his attack of the court upon the ages of the justices, appointing the 65 year old Robinson would belie Roosevelt's stated goal of infusing the court with younger blood.[112] Further, Roosevelt worried about whether Robinson could be trusted on the high bench, as Robinson was a conservative Democrat.[112]

The second blow occurred in the Senate Judiciary Committee action that day on Roosevelt's court reform bill.[113] First, an attempt at a compromise amendment which would have allowed the creation of only two additional seats was defeated 10–8.[113] Next, a motion to report the bill favorably to the floor of the Senate also failed 10–8.[113] Then, a motion to report the bill "without recommendation" failed by the same margin, 10–8.[113] Finally, a vote was taken to report the bill adversely, which passed 10–8.[113]

On June 14, the committee issued a scathing report that called FDR's plan "a needless, futile and utterly dangerous abandonment of constitutional principle... without precedent or justification".[114][115]

Entrusted with ensuring the bill's passage, Robinson began his attempt to get the votes necessary to pass the bill..[116] In the meantime, he worked to finish another compromise which would abate Democratic opposition to the bill.[117] Ultimately devised was the Hatch-Logan amendment, which resembled Roosevelt's plan, but with changes in some details: the age limit for appointing a new coadjutor was increased to 75, and appointments of such a nature were limited to one per calendar year.[117]

The Senate opened debate on the substitute proposal on July 2.[118] Robinson led the charge, holding the floor for two days.[119] Procedural measures were used to limit debate and prevent any potential filibuster.[119] By July 12, Robinson had begun to show signs of strain, leaving the Senate chamber complaining of chest pains.[119]

On July 14, a housemaid found Robinson dead of a heart attack in his mother, the Congressional Record at his side.[119] With Robinson gone so too were all hopes of the bill's passage.[120] Roosevelt further alienated his party's Senators when he decided not to attend Robinson's funeral in Little Rock, Arkansas.

On returning to Washington, D.C., Vice President John Nance Garner informed Roosevelt, "You are beat. You haven't got the votes."[121] On July 22, the Senate voted 70–20 to send the judicial-reform measure back to committee, where the controversial language was stripped.[122] The Senate passed the revised legislation a week later, and Roosevelt signed it into law August 26.

A political fight which began as a conflict between the President and the Supreme Court turned into a battle between Roosevelt and the recalcitrant members of his own party in the Congress.[7] The political consequences were wide-reaching, extending beyond the narrow question of judicial reform to implicate the political future of the New Deal itself. Not only was bipartisan support for Roosevelt's agenda largely dissipated by the struggle, the overall loss of political capital in the arena of public opinion was also significant.[7]

As Michael Parrish has written, "the protracted legislative battle over the Court-packing bill blunted the momentum for additional reforms, divided the New Deal coalition, squandered the political advantage Roosevelt had gained in the 1936 elections, and gave fresh ammunition to those who accused him of dictatorship, tyranny, and fascism. When the dust settled, FDR had suffered a humiliating political defeat at the hands of Chief Justice[Charles Evans] Hughes and the administration's Congressional opponents."[123][124]

With the retirement of Justice Willis Van Devanter, the Court's composition began to move solidly in support of Roosevelt's legislative agenda. By the end of 1941, following the deaths of Justices Cardozo (1938) & Butler (1939), and the retirements of Van Devanter (1937), Sutherland (1938), Brandeis (1939), McReynolds (1941), & Hughes (1941), only two Justices (former Associate Justice, by then promoted to Chief Justice, Stone, and Associate Justice Roberts) remained from the Court Roosevelt inherited in 1933.

↑Leuchtenburg, William E. (June 2005). "Charles Evans Hughes: The Center Holds". North Carolina Law Review83: 1187–1204. "Some scholars disapprove of the terms 'conservative' and 'liberal,' or 'right, center, and left,' when applied to judges because it may suggest that they are no different from legislators; but the private correspondence of members of the Court makes clear that they thought of themselves as ideological warriors. In the fall of 1929, Taft had written one of the Four Horsemen, Justice Butler, that his most fervent hope was for 'continued life of enough of the present membership ... to prevent disastrous reversals of our present attitude. With Van [Devanter] and Mac [McReynolds] and Sutherland and you and Sanford, there will be five to steady the boat ....' Six counting Taft.".